Tag: ACT

  • EHRC is consulting on sex in the Equality Act. Universities should too

    EHRC is consulting on sex in the Equality Act. Universities should too

    24 hours after it promised to, the Equality and Human Rights Commission (EHRC) has launched a consultation on updates to its statutory Code of Practice for services, public functions and associations, following the Supreme Court’s ruling on the meaning of “woman” in the Equality Act.

    As a reminder, the kernel of the ruling was that the definition of sex in the Equality Act 2010 (the Act) should be interpreted as “biological” sex only. This means that, for the purposes of that Act, a person’s legal sex is the one that was recorded at their birth.

    That’s different to the previous interpretation adopted by the courts, which was that the definition of sex also includes people who have obtained a Gender Recognition Certificate (GRC). According to the new ruling, obtaining a GRC does not change your legal sex for Equality Act purposes.

    In this limbo period, the pressure from one side of the debate has been calling for X or Y to change now, and from another side arguing that it’s the Codes of Practice that matter.

    Designed to help individuals, employers, and service providers understand and comply with equality laws, they cover areas like employment, services, education, and public functions – and while they are not legally binding, courts and tribunals often take them into account in discrimination cases.

    Given the pressure, consultation was going to be rapid – open for two weeks – but EHRC has now announced that it will run until 30 June 2025. Once the consultation is done, it will review responses, make amendments to the Code of Practice, and it will then be submitted to the Minister for Women and Equalities for approval and laying in Parliament.

    The consultation specifically focuses on sections of the Code of Practice that need to be updated following the judgment – the rest was consulted on between October 2024 and January 2025.

    The idea is to gather views on whether its proposed updates clearly articulate the practical implications of the judgment and enable those who will use the Code to understand, and comply with, the Equality Act 2010. The EHRC is at pains to point out that the Supreme Court made the legal position on the definition of sex clear, so the EHRC is not seeking views on those legal aspects.

    Thus far, my conversations around the sector indicate a “we’re waiting for the guidance” approach before anyone does anything – though there has been at least one case where a university has had to backtrack and apologise having taken a decision that anticipated the interpretation of the new ruling.

    And that does create both some “race against time” pressure for universities (and SUs) intending to wait for the final guidance given the proximity to Welcome Weeks, and on the expectations people will have for what happens next, which I’ve explained below.

    Enforcement

    One of the major controversies has been about what we might call “enforcement” in a single-sex space, facility or service.

    In other words, if a toilet is marked up as “women”, will those operating said toilet be able to, or even expected to find some way of checking on someone’s biological birth sex?

    In the EHRC draft, asking someone about their birth sex publicly, or in a tone that is rude or combative, could amount to unlawful discrimination or harassment. Policies that apply different questioning standards to different people – for example, asking only those who “don’t look like they belong” in a particular space – also risk breaching indirect discrimination provisions, unless there is clear and justifiable reasoning behind them.

    The draft guidance also stresses that verifying someone’s birth sex – or requesting documents like a birth certificate – is a step that should be taken only in rare cases, and even then with great care. As such, the ability to enforce a single-sex policy by removing someone is more limited than it may initially appear, particularly for those on one side of the debate.

    If a trans person declines to answer a question about birth sex, or answers in a way that is later contested, a provider cannot simply demand proof unless they have a clear, lawful basis for doing so. And even then, their request must be framed within a structured policy that minimises legal risk and respects privacy. The idea that someone can simply be turned away on the basis of an appearance-based suspicion is not really viable under this framework.

    Another complication is that direct discrimination by perception applies to sex, even if the person doesn’t legally hold that characteristic under the Equality Act. The draft confirms that a trans woman, though not considered a woman in law, could still claim sex discrimination if they were treated less favourably because they are perceived to be a woman.

    This widens protection in practice – it confirms that discriminatory treatment based on how someone is seen, not just what they are, can still breach the Act – even where legal definitions of sex or gender reassignment wouldn’t otherwise apply.

    On maternity, protection from pregnancy and maternity discrimination now clearly rests on biological sex – the previous reliance on case law to justify protection for trans men with a GRC has been removed, because under the clarified interpretation, their legal sex remains female for Equality Act purposes.

    This simplifies the legal basis – trans men who are pregnant are now protected as women in law, not by exception or interpretation. It reinforces the Act’s grounding in biological sex across all protected characteristics, aligning pregnancy and maternity provisions with the rest of the guidance.

    Objective discrimination

    Changes to section 5 of the code mean that in EHRC’s view, the Equality Act’s provisions on indirect discrimination now more clearly include people who don’t share a particular protected characteristic but experience the same disadvantage as those who do. This reflects the “same disadvantage” principle that is more commonly understood re race or disability, and applies it explicitly to sex and gender reassignment.

    A case study shows how a trans woman can claim indirect sex discrimination if they are disadvantaged in the same way as women – because of a shared experience with women of feeling unsafe. The protection doesn’t depend on whether they are legally female under the Act, nor on any formal association with women – it just depends on whether they face substantively the same disadvantage from the same policy.

    This extends legal protection in practice – it allows a broader group of individuals to challenge policies that disproportionately harm one group, even if their own legal status differs. It also reinforces the role of objective justification – so organisations must be able to show that their decisions are fair, necessary, and proportionate, or risk breaching the Act.

    Harassment

    Section 8 explains the general test for harassment under the Equality Act, and the change here is that harassment based on perception is now explicitly covered in the context of sex and gender reassignment. A new example involves a trans woman – showing that even if someone is wrongly perceived to have a protected characteristic, such as being biologically female, they are still protected under the Equality Act if they face unwanted conduct related to that perception.

    That broadens the scope of protection for trans people and others facing abuse based on assumptions, and it further clarifies that intent is irrelevant – what matters is the effect of the conduct and its link to a perceived protected characteristic.

    Associations

    Section 12 explains how the Equality Act applies to associations, and makes clear that women-only associations can lawfully refuse membership to trans women, based on the clarified interpretation that sex under the Equality Act means biological sex at birth.

    The example given shows that a trans woman does not share the protected characteristic of “sex as a woman” under the Act and therefore can be excluded from an association that lawfully restricts membership to women.

    But it doesn’t say that a trans woman must be excluded.

    The complicator that isn’t covered in the draft runs something like this. If a women-only association excludes cis men, that is lawful – and always has been – because the Equality Act 2010 explicitly allows associations to restrict membership to people who share a protected characteristic, such as sex.

    But if that the association then permits trans women (whose legal sex is male under the Act, even if they have a GRC) but excludes cis men (also legally male), EHRC says that would be applying inconsistent treatment within the same legal sex category – undermining the justification for using the sex-based restriction in the first place.

    So if that association wants to use the lawful sex-based exception, it in theory has to apply that restriction consistently based on biological sex – exclude all who are legally male under the Act, including both cis men and trans women.

    If it instead admits some individuals with the legal sex of “male” (e.g. trans women), while excluding others (cis men), then the restriction is no longer based solely on sex, but on gender identity or appearance – and that is not a lawful basis for exclusion, and so could lead to claims of direct sex discrimination by cis men, since they are being treated less favourably than other legally male individuals (trans women).

    So if there’s a staff women’s group or an SU has a women’s officer, converting the group or position into one that’s about a topic rather than a membership characteristic looks OK. Even if it was about a membership characteristic, as long as it isn’t actively excluding cis men while including trans women, that would seem to be fine – notwithstanding there may be arguments about feelings of exclusion, or expectations raised in an inappropriate way and so on.

    Sport

    This has been a key issue in the commentary – EHRC’s draft clearly permits organisers of gender-affected competitive sports (i.e. sports where strength, stamina, or physique create a meaningful performance gap) to exclude or treat trans people differently if it is necessary for reasons of fair competition or safety.

    Crucially, the guidance affirms that exclusion must be justified, proportionate, and based on evidence. A blanket ban on trans participation would likely be unlawful unless organisers can show that it is essential to protect fairness or safety. For example, excluding a trans man from a men’s boxing event due to safety concerns is likely lawful – if justified with reference to physical risk.

    The guidance also clarifies that if an event is mixed-sex and so does not invoke the single-sex exception, sex discrimination claims may arise – for example, from cis women disadvantaged by trans women competitors.

    Basically it emphasises the need for clear, evidence-based policies, especially in sports where fairness and safety are contested. Organisers are encouraged to draw on medical guidance and national governing body rules, balancing inclusion with legal duties to all participants. For universities and SUs, there’s clearly a line to be drawn between what we might call “BUCS sport” and “a kickabout organised by reslife”, although that line is not especially clear here.

    Single sex services

    If you are operating a single-sex service, another revised section encourages service providers to develop clear, written policies on when and how they will deliver separate or single-sex services, while also allowing for limited, carefully considered exceptions in individual cases – such as admitting a male child to a women’s changing room – as long as it does not undermine the core purpose of the service (e.g. safeguarding women’s access, privacy, or safety).

    Another section draws a clearer line around how and when trans people may lawfully be excluded from single- or separate-sex services, while reinforcing that such exclusions must always be proportionate, justified, and considered on a case-by-case basis.

    And it reminds that admitting someone of the opposite biological sex – such as a trans person – to a single-sex service may legally change the nature of that service, making it no longer covered by the single-sex exceptions under the Equality Act, itself creating a legal risk of sex discrimination against those excluded from the redefined service.

    Providers are therefore advised to consider less intrusive alternatives, like offering additional mixed or separate services, or adapting facilities (private, unisex toilets), where feasible. But if alternative arrangements would be impractical or undermine the service itself, exclusion may still be proportionate and lawful – but that decision must also consider how the trans person presents, what alternatives exist, and whether the exclusion leaves them without access to essential services like toilets or changing rooms.

    Communal accommodation

    This is less common in these days of cluster flats and ensuite, but again there’s competing rights to weigh up. It’s lawful to restrict access to communal sleeping or sanitary facilities based on biological sex, particularly where shared use would compromise privacy. But excluding someone because of gender reassignment – such as a trans woman from women’s dorms – can also be lawful, but only if it is a proportionate means of achieving a legitimate aim, such as protecting privacy or avoiding distress.

    Upshots and implications

    So what now? The wait and see approach does mean that where universities (and their SUs) are making changes to facilities, groups, services, positions and so on, or not making changes, those decisions will now likely need to be made over the summer – which means a storing up of trouble for the new academic year.

    What’s clear from the guidance is that whether we’re talking about a women’s officer role in an SU, a changing room, a block of toilets or a women’s self defence group, there are going to be options.

    The draft seems to indicate that a sign on a toilet that’s painted pink saying “trans inclusive, use the toilet you are most comfortable with” would be legally fine – but it could also trigger indirect sex discrimination claims, particularly if women argue that the policy has created a space where they no longer feel safe or comfortable, especially in settings where privacy, safeguarding, or trauma concerns are significant.

    And that risk is heightened if an organisation fails to provide alternative single-sex spaces for those who need or expect them.

    In other words, the single sex provisions in the Equality Act are mainly about the ability to enforce and exclude the “other” sex from something, any expectations that are set (and then not met), and the availability of alternatives.

    If you can’t rely on the Equality Act to carry out your exclusion, you can’t exclude. As such if we imagine a block of toilets, there will be choices:

    Option 1 is effectively to say “these toilets are open to all”, or “these are aimed at those who identify as women”. As long as it’s clear that the intention is not to actively exclude men from those toilets, and that people can use which ever toilet they feel most comfortable in, that appears to be legal.

    Option 2 is to take a toilet block currently marked as “women” and to make clear that these are a single sex facility as per the Equality Act 2010 – in other words, these are toilets specifically for biological women.

    The same goes for pretty much everything that’s currently gendered.

    The complicator in the case of toilets is that under UK law, employers are required to provide separate toilet facilities for men and women unless each facility is a fully enclosed, lockable room intended for single occupancy – and the tricky part is that a lot of toilets on a university campus may well act both as staff toilets, and (service provider) student toilets.

    But nevertheless, this still opens up considerable flexibility. Neither the ruling, nor the draft guidance, nor the finalised guidance, is going to tell universities (and their SUs) what to do about a given facility, service, group, scheme or position – and nor will it supply information on the expectations of staff and students on a given campus.

    And that sets up a problem for September.

    • If a toilet block currently marked “women” is marked up in an Option 1 way, some people on campus will be furious that it’s not been defined exclusively for biological women.
    • If a toilet block currently marked “women” is marked up in an Option 2 way, some people on campus will be furious that it’s not been defined in a way that is trans inclusive.

    The decisions across the portfolio of facilities, services, groups, schemes or positions almost by definition can’t be consistent – and so the way those decisions are made, and why, will be crucial – as will careful communication of them.

    In other words, here in the dying days of May, the time to roll sleeves up and get consulting with staff and students is now – not during Welcome Week.

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  • Senate Committee Postpones Vote on Antisemitism Awareness Act

    Senate Committee Postpones Vote on Antisemitism Awareness Act

    A vote on the Antisemitism Awareness Act—a bill that would codify the International Holocaust Remembrance Alliance’s controversial definition of antisemitism—was postponed Wednesday following a testy two-hour debate in the Senate Health, Education, Labor and Pensions Committee, Jewish Insider reported.

    The committee’s Republican chairman, Sen. Bill Cassidy of Louisiana, called off the planned vote after the Democratic minority won enough Republican support to pass several amendments aimed at more clearly distinguishing what qualifies as discriminatory speech and protecting the First Amendment rights of pro-Palestinian protesters.

    For instance, some of the proposed amendments included clarifying that it is not antisemitic to oppose the “devastation of Gaza,” or to criticize Israeli prime minister Benjamin Netanyahu, as well as preventing the revocation of visas based on “protected conduct under the First Amendment.” Lawmakers also sought to ensure students and faculty members could protest as long as they don’t incite violence.

    Cassidy opposed the amendments, saying they were “problematic” and could jeopardize GOP support for the bill on the Senate floor.

    “So that it’s clear for the people that are watching, supporting these amendments is an effort to kill this bill, which protects Jewish students from antisemitic acts,” he said during the meeting. “The bill [already] includes protections for free speech. So let’s not be naïve as to what’s taking place here.” 

    But Democrats and Republican Rand Paul of Kentucky said the amendments were necessary to ensure that while objecting to bigotry and discrimination, this bill also upheld the constitutional right to peaceful protest. (Sen. Susan Collins, a Maine Republican, also supported some of the amendments.)

    “I worry very much that the Antisemitism Awareness Act that we are considering today is unconstitutional and will move us far along in the authoritarian direction that the Trump administration is taking us,” Sen. Bernie Sanders, a Vermont Independent and ranking member of the committee, said in his opening remarks.

    Paul also objected the current bill’s language, particularly the examples of antisemitic speech it includes.

    “The problem is if you look at the IHRA’s examples of speech, they are going to be limiting on campuses everything on that list … protected by the First Amendment,” Paul said. “The First Amendment isn’t about protecting good speech; it protects even the most despicable and vile speech.” 

    The bill was already expected to face a tight vote given that the committee consists of 12 Republicans and 11 Democrats. So if two Republicans voted in opposition to the act, it wouldn’t move forward.

    Furthermore, multiple Republican members of the committee were not present for the full hearing due to other commitments. Cassidy said there was not enough time for all Republicans to return to the committee room for a vote before the meeting ended, so he postponed the vote. A vote on the Protecting Students on Campus Act, which would require colleges to notify students of how to file discrimination complaints, was also delayed.

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  • The balancing act goes on

    The balancing act goes on

    Balancing free speech and protection from harassment is a complex, evolving challenge with no one-size-fits-all solution.

    Decisions must be made based on the specific context and facts of each case.

    However, our experience shows these risks are dynamic – over time, new challenges emerge, stretching our policies, processes, and understanding. The question for HEIs then, is how to navigate such a landscape.

    Recently, OfS’ Regulatory Case Report for the University of Sussex has sparked extensive commentary. Jim Dickinson, in multiple articles on Wonkhe, has explored its implications for effective regulation, rightly emphasising the crucial role of collaboration and trust.

    Efficiency is the watchword of the day and the approach in the case report risks fostering a more expensive American-style adversarial legalism. But the stakes are higher than just the streamlined effectiveness of our regulatory system.

    The rights, experience and outcomes in education and career for HE students and staff often depend on our approach and decisions in these critical cases.

    Challenges and priorities

    The UK higher education sector has faced a significant challenge. Free speech has at times been overlooked in our policies and work, especially in areas of equity, diversity, and inclusion.

    The policy template in the Sussex case report was drafted by one of Advance HE’s predecessor organisations, the Equality Challenge Unit. However, the sector now shows a shared intent to prioritise free speech. Universities UK states:

    “It’s absolutely essential that universities uphold freedom of speech and academic freedom, and they are legally bound to do so. Universities must also create an environment where all people can work and learn together.

    There is increasing clarity on the “presumption in favour of free speech” in UK law and in higher education practice. This is evident in relation to free speech and protected beliefs, such as in the recent Court of Appeal judgment in the Higgs case, as well as in areas like Prevent and institutions’ responses to protests on Israel/Gaza.

    We would benefit from more openly recognising this shared intent and commitment to free speech and academic freedom. However, the answers to many of the difficult cases and questions that arise in these areas are not settled.

    New incidents will create different circumstances and illuminate different boundaries of law and regulation, and there will be new court cases and judgments to learn from (such as the Supreme Court ruling on the definition of a woman in the Equality Act 2010).

    We will continue to grapple with the challenging interplay between free speech, inclusion, and harassment. This tension is now explicit in the OfS regulatory framework, particularly between freedom of speech and Condition E6 on Harassment and Sexual Misconduct.

    The most important decisions about free speech and inclusion happen in our classrooms and offices. Academics navigate contentious topics and sensitive discussion, while managers respond to concerns about speech and harm, or debates that turn into allegations of harassment.

    These decisions are often uncertain, taken in individual contexts without clear legal precedent or direct policy instruction. Our staff and students therefore depend on our collective ability to make reasonable and proportionate decisions in heated, highly contextualised, and risky environments.

    These challenges are dynamic and will continue to evolve. Many HE policies and solutions from five or ten years ago are not fit for purpose now. We would be naïve to think our current approaches will not again need to evolve to meet future circumstances and challenges.

    How then can we ensure the rights to free speech and protection from harassment are upheld for staff and students under these circumstances?

    The way ahead will require proactive leadership, horizon scanning, and a willingness to collaborate and innovate in sensitive areas.

    Collaboration is key

    OfS itself has emphasised the importance of collaboration. Arif Ahmed, the Director for Freedom of Speech and Academic Freedom at OfS, noted:

    “I believe that there is much to be gained from collaboration with [the sector] on these important issues. I am therefore keen to engage with stakeholders now on the most effective ways to approach the promotion of freedom of speech.

    As a sector, we need to work collaboratively to find opportunities for innovation and allow UK higher education to experiment at the edges of promoting and protecting free speech while openly addressing clear instances of unlawful harassment. UUK, GuildHE and Advance HE alongside many individual institutions have been proactive recently in creating spaces for discussion and practice in balancing free speech and inclusion.

    We are not alone in this challenge. Other nations and HE sectors have similar values and intent but slightly different legal frameworks. The recent Hodgkinson Review from the University of Sydney demonstrates the potential that a more global conversation might offer to horizon scanning and innovation in the UK.

    Beyond collaboration, innovation and horizon scanning, securing free speech and protection from harassment will test institutional resilience to difficult and complex cases. This will require institutional competence, but more importantly, any long-term success demands individual capacity and judgment from academics and staff.

    One-off training programs will be quickly outdated. Staff will be more effective engaging with policies in context, with clear opportunities to escalate challenges and receive responsive feedback and support. Leaders and front-line staff will need to be supported to engage with and share learning from the most complex cases.

    The approach to regulation demonstrated by the Case Report on Sussex encourages institutions to prioritize free speech and embed it into policy and practice. But this is already well understood and underway. What the Case Report won’t do is encourage institutions to step into difficult and complex cases more openly and engage in challenges that don’t have clear answers.

    The hazard here is the possibility of an environment where HEIs and staff may feel compelled to remove risk from engagement with speech. Staff and students might avoid contentious topics in research and teaching and withdraw from activities where there are concerns about harassment and discrimination. This would limit the innovative and provocative speech we should protect and undermine our ability to add value at the boundaries of societal debate.

    New regulation, such as the complaints scheme, could be a powerful mechanism for horizon scanning and supporting learning and consistent practice across institutions. To build a more robust approach to free speech in UK higher education, we need more collaboration and trust, and to build on our shared commitment to free speech and protection from harassment.

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  • Most popular degrees for NSW, ACT incoming students – Campus Review

    Most popular degrees for NSW, ACT incoming students – Campus Review

    On Campus

    Data from 75,000 applicants showed the degrees of choice for incoming students

    Health and Society and Culture courses remain the most popular for university applicants in NSW and the ACT according to the admissions centre.

    Please login below to view content or subscribe now.

    Membership Login

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  • Laken Riley Act passes Senate

    Laken Riley Act passes Senate

    The House is preparing to take up the Laken Riley Act later this week after the Senate passed the bill Monday, Politico reported.

    Twelve Democrats joined all of the higher chamber’s Republicans to vote for the immigration bill, named for a 22-year-old woman killed by an undocumented immigrant in Georgia last year. Immigration policy experts say the bill could have consequences for international students applying to study in the U.S.

    The bill would primarily force harsher detention policies for undocumented immigrants charged with crimes, but it also expands the power of state attorneys general, allowing them to sue the federal government and seek sweeping bans on visas from countries that won’t take back deportees. 

    The Department of Homeland Security has said the bill would require billions of dollars in additional funding to enforce.

    The legislation now goes back to the House, which passed a similar but not identical bill earlier this month. If it passes the House a second time, it would then land on President Donald Trump’s desk, providing an early win on one of his highest-priority issues, immigration.

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  • EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    by CUPA-HR | April 17, 2024

    On April 15, 2024, the Equal Employment Opportunity Commission issued its long-awaited final regulations and interpretative guidance on the implementation of the Pregnant Workers Fairness Act (PWFA). The EEOC states in its press release that the final rule is intended to offer “important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.” It provides guidance to employers and workers “about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations.” The regulations will be published in the Federal Register on April 19 and go into effect 60 days later.

    The PWFA, which was signed into law in December 2022, requires most employers with 15 or more employees “to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” It passed Congress with strong bipartisan support.

    Known Limitations

    Under the regulation, “limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The regulations specify that the definition of a limitation “shall be construed broadly to the maximum extent permitted by the PWFA.” A limitation “may be a modest, minor, and/or episodic impediment or problem” and can be related to current or past pregnancies, potential or intended pregnancies, and labor and childbirth.

    The examples of limitations provided in the rule include miscarriage or stillbirth, migraines, lactation, postpartum depression, and pregnancy-related episodic conditions, such as morning sickness, but the list is not intended to be exhaustive. The limitation may be “a need or a problem related to maintaining [the worker’s] health or the health of the pregnancy,” and it “need not be caused solely, originally, or substantially by pregnancy or childbirth.” Related medical conditions can include conditions that existed before pregnancy or childbirth but are exacerbated by the pregnancy or childbirth.

    The employee or their representative must communicate the limitation to the employer to receive a reasonable accommodation. The employee and employer should engage in an interactive process to determine if a worker’s limitation qualifies for a reasonable accommodation and the appropriate accommodation.

    Reasonable Accommodations

    Under the final rule, “reasonable accommodations” have the same definition as under the Americans with Disabilities Act. They include modifications or adjustments to the application process, to the work environment or how the work is performed, and that allow the employee to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without known limitations. It also includes modifications or adjustments to allow a covered employee to temporarily suspend one or more essential functions of the job.

    The rule provides several examples of reasonable accommodations that may be appropriate under the act. These include but are not limited to additional breaks, allowing the worker to sit while they work, temporary reassignment or suspension of certain job duties, telework, or time off to recover. Leave can be requested even if the employer does not offer leave as an employee benefit, the employee is not eligible for the employer’s leave policy, or the employee has used up their allotted leave under the employer’s policy.

    Reasonable accommodations are limited to the individual who has a PWFA-covered limitation; it does not extend to an individual who is associated with someone with a qualifying limitation or someone with a limitation related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical condition. The regulations specifically clarify that “time for bonding or time for childcare” are not covered by the PWFA.

    Undue Hardship

    The rule explains that an employer does not have to provide a reasonable accommodation if it would cause an “undue hardship,” or a significant difficulty or expense. The rule includes a variety of factors that should be considered when determining if a reasonable accommodation would impose an undue hardship, including the nature and net cost of the accommodation; the overall financial resources of the facility or covered entity; the type of operations of the covered entity; and the impact of the accommodation on operations, including on the ability of other employees to perform their duties or the facility’s ability to conduct business.

    The rule provides several factors to consider when analyzing whether an accommodation involving the temporary suspension of essential functions of the position qualifies as an undue hardship. These include the length of time the employee will not be able to perform the essential function; whether there is work for the employee to accomplish; the nature of the essential function; the employer’s history of providing temporary suspensions to other, similarly situated employees; whether other employees can perform the functions; and whether the essential functions can be postponed.

    Other Provisions

    The rule also encourages “early and frequent communication between employers and workers” in order “to raise and resolve requests for reasonable accommodation in a timely manner.” Employers are also instructed that they are not required to request supporting documentation when an employee asks for a reasonable accommodation; they should only do so when it is reasonable under the circumstances.

    Controversies Surrounding the Regulations

    While the PWFA was passed by Congress with strong bipartisan support, the EEOC has faced significant pushback about the implementing regulations.

    The EEOC’s delay in issuing these regulations caused considerable frustration from employers. The PWFA went into effect in June 2023, which was when employers were required to comply with the law and the EEOC began accepting claims of discrimination under the act. Without the implementing regulations, however, employers had no certainty as to how to comply, leaving them exposed to potential liability.

    The most significant criticism stemmed from the regulation’s implications around abortion. In fact, of the nearly 100,000 comments the EEOC received in response to its notice of proposed rulemaking on the regulations, over 96,000 discussed the regulation’s inclusion of abortion. The final rule clarifies that “having or choosing not to have an abortion” qualifies as a medical condition under the regulations. Several Republican members of Congress accused the EEOC of using the regulations to further the Biden administration’s pro-choice agenda. EEOC Chair Charlotte Burrows, however, defended the language, saying it is consistent with legal precedent and the agency’s interpretations of other civil rights statutes under their jurisdiction. The regulation clarifies that employers will not be required to pay for abortions or travel-related expenses for an employee to obtain an abortion. The EEOC specifies they expect the most likely accommodation related to abortion will be leave to attend a medical appointment or recover from a procedure. Several conservative organizations are threatening legal action against the final rule.

    Litigation Challenging the PWFA

    On February 27, 2024, a federal district court in Texas ruled that the House of Representatives lacked a quorum when it passed the PWFA, because over 200 representatives voted by proxy. The Constitution required that a quorum be present for the House to conduct business, but in response to the COVID-19 pandemic, the House allowed for proxy voting. The court found Congress violated the Constitution when it passed the law and blocked enforcement of the act against the state of Texas and its agencies. The law is in effect elsewhere in the United States, but other legal challenges may follow Texas’s approach.



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  • December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    by CUPA-HR | January 10, 2024

    Through December and into the new calendar year, federal government leaders kept busy with Congressional hearings and markups, new legislation, and proposed and final rules focusing on issues that may be of significance to higher education HR professionals. CUPA-HR tracked several actions from both Congress and federal agencies on issues including paid family leave, short-term Pell Grants, the Pregnant Workers Fairness Act, and workforce development.

    House Education and Workforce Committee Markup

    On December 12, 2023, the House Committee on Education and the Workforce held a full committee markup on H.R. 6585, the Bipartisan Workforce Pell Act, and H.R. 6655, A Stronger Workforce for America Act.

    The Bipartisan Workforce Pell Act aims to amend the Higher Education Act of 1965, allowing students to use Pell Grants for eight-week or longer educational programs. This bill also establishes quality control measures for Pell initiatives, enabling higher education institutions to participate if they meet specific criteria. The committee voted to move the legislation out of committee with 37 members voting in favor and 8 members voting against the bill.

    The next bill, A Stronger Workforce for America Act, seeks to renew and enhance the Workforce Innovation and Opportunity Act (WIOA). Originally established in 2014, WIOA has been extended through yearly appropriations since fiscal year 2021. The bill incorporates multiple measures to modernize WIOA, bolstering the country’s workforce development to better equip and retain workers. The bill passed through the committee with bipartisan support; 44 members voted in favor of and only one member voted against it.

    Paid Leave Request for Information

    On December 13, the Congressional Bipartisan Paid Family Leave Working Group published a Request for Information (RFI) for diverse stakeholder input to aid in the expansion of access to paid parental, caregiving, and personal medical leave nationwide. The members encouraged interested stakeholders to submit letters that answer these ten questions on the role the federal government can play in creating a national paid leave program.

    Responses must be submitted by January 31, 2024, and can be directed to [email protected], [email protected], [email protected], and [email protected]. CUPA-HR will continue to track developments and intends to collaborate with associate organizations to submit feedback on an as-needed basis.

    National Apprenticeship System Enhancement Proposed Rule

    On December 14, the Department of Labor (DOL) unveiled a proposed rule to modernize the regulations for Registered Apprenticeship programs. The 779-page proposal focuses on provisions to create “safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program,” while also creating baseline requirements for career and technical education apprenticeships, which would target high school and postsecondary students to programs that align more closely with programs found at institutions of higher education.

    DOL is providing a 60-day comment period for the proposed rule, which will commence once the regulation is posted in the Federal Register. CUPA-HR is analyzing the rule and will coordinate with other higher education associations as needed to file comments.

    Federal Transit Authority General Directive on Assaults on Transit Workers

    On December 20, the Department of Transportation (DOT)’s Federal Transit Administration (FTA) proposed a General Directive to address the ongoing national safety risk concerning assaults on transit workers. Transit agencies falling under FTA’s Public Transportation Agency Safety Plans directive would be instructed to conduct safety risk assessments, identify mitigation strategies, and report discoveries to FTA. Per the Bipartisan Infrastructure Law, transit agencies operating in urban areas must collaborate with the joint labor-management safety committees to reduce safety hazards.

    The deadline for submitting comments in the Federal Register is February 20, 2024, but late submissions may be considered. CUPA-HR is working with members and other higher education associations to determine the impact that this directive may have on transportation and HR services at institutions of higher education.

    Regulations to Implement the Pregnant Workers Fairness Act

    On December 27, the Equal Employment Opportunity Commission (EEOC) sent its final rule to implement the Pregnant Workers Fairness Act (PWFA) to the Office of Information and Regulatory Affairs (OIRA) for review prior to its publication in the Federal Register. The final rule will likely look very similar to the proposed rule that was issued in August 2023, which provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    The EEOC was tasked by law with finalizing regulations to implement the PWFA by December 29, 2023. Given the missed deadline, OIRA may move quickly on its review of the regulations, and we could see the final rule published sometime between late January and late February. CUPA-HR is continuing to monitor for any updates and will keep members apprised of any new details that may arise in the final rule.



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  • EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    by CUPA-HR | August 28, 2023

    On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees. 

    Purpose and Definitions 

    Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.” 

    Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria: 

    • Any inability to perform an essential function is for a temporary period 
    • The essential function could be performed in the near future 
    • The inability to perform the essential function can be reasonably accommodated 

    The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.  

    Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.  

    Reasonable Accommodations 

    The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation. 

    The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.  

    Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are: 

    • Allowing employees to carry water and drink, as needed, in the work area 
    • Allowing employees additional restroom breaks 
    • Allowing employees to sit or stand when needed 
    • Allowing employees breaks, as needed, to eat and drink 

    Supporting Documentation 

    The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation. 

    Remedies and Enforcement 

    The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA. 

    Next Steps 

    The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented. 

    The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.  

    CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.



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  • A Review of Complete College America’s ACT Conference (June 2022)

    A Review of Complete College America’s ACT Conference (June 2022)

    In June 2022, I was very excited to attend Complete College America’s ACT: Policy & Action Summit in Louisville, Kentucky. This was my first time visiting Kentucky and everything was beautiful! 

    Apparently, this conference is “where the magic happens. Where ideas come to life, decisions are made, and plans for impact take shape” and this was definitely true. Usually, when I attend a higher education summit, it is just focused on current information and best practices, but this conference took a different turn. It was all about action and implementation.

    Several of the key groups from the Complete College were able to come together and to take action. These groups included: state teams of higher education leaders and policymakers came together. 

    The content was amazing and the conversations were even better.  Our conversations focused on Time to Degree, Corequisite Support, Guided Pathways, and more.

    Here was the schedule:

    Day 1

    Welcome from the CCA President: Dr. Yolanda Watson-Spiva

    Bringing in Those Left Behind in the College Completion Movement

    Continued Progress and New Frontiers

    No Middle Ground – Advancing Equity Through Practice

    ACT I – Start, Stop, Continue

    Day 2

    The Politics of Equitable College Completion

    Equity and Public University Funding

    No Middle Ground – Advancing Equity in All States

    ACT II & III – Policy Recommendation and Development

    Innovation in Systems Change

    New Opportunities for Your Complete College Alliance Team

    I learned so much through this summit and the networking was great. One of the aspects of the conference that served as a highlight for me was the placement of several flags around the room to represent the institutions of each Complete College America member/partner.

    This was evidence of intentional support and success.

    The sponsors for this event included: The Lumina Foundation, the Bill and Melinda Gates Foundation, Ascendium, the Annie E. Casey Foundation, and the Barr Foundation

    ***

    Check out my book – Retaining College Students Using Technology: A Guidebook for Student Affairs and Academic Affairs Professionals.

    Remember to order copies for your team as well!


    Thanks for visiting! 


    Sincerely,


    Dr. Jennifer T. Edwards
    Professor of Communication

    Executive Director of the Texas Social Media Research Institute & Rural Communication Institute

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